HISTORY HAS BEEN kind to two of the three branches of American government. Our pantheon of national heroes includes plenty of figures from the executive branch—presidents, cabinet secretaries, and governors—and nearly as many from the legislature. But apart from a few names, names like John Jay and John Marshall in the eighteenth century and Oliver Wendell Holmes and Earl Warren in the twentieth, the people of the judicial branch are seldom remembered.

Nevertheless, their roles in shaping the nation were in some ways as large as the better-known figures of government. Cases in point are the early justices of the Supreme Court of the United States, men who had to interpret the least familiar parts of America's new Constitution, to resolve its ambiguities, and to balance its principles against one another. No court before had faced these issues, or been asked to decide fundamental issues of the document's interpretation. Those now-neglected justices had to figure out how to read the laws of the new nation.

A NAME LITTLE RECALLED is John Blair Jr., one of the original six justices of the Supreme Court, and a man who ought to be remembered for his part in two of the United States's most noteworthy early legal decisions. Blair was a Virginian whose Williamsburg roots were deep. His great-uncle, James Blair, was the founder and first president of the College of William and Mary. His parents, John Blair and Mary Monro, were familiar Williamsburg figures, and Blair was born there in 1732. He was educated at William and Mary, from which he was graduated with honors in 1754.

Supreme Court
of the United States

Contemporary artist Irwin Smith imagined the first meeting in New York of the United States Supreme Court in 1790 and 1791. From left, William Cushing, Chief Justice John Jay, John Blair, and James Wilson. They did not hear a case until 1792.

His early career took him to a seat in the House of Burgesses, where he represented the College of William and Mary and in 1765 voted against Patrick Henry's Stamp Act resolutions. In the early 1770s, he served as a clerk to the Governor's Council. As the rift between Great Britain and her colonies widened, however, he became an activist for American rights. He helped, for example, to write the non-importation agreements the colonies used to protest against British tax policies. He helped to draft Virginia's constitution of 1776, and served on the committee that approved Virginia's Declaration of Rights.

In 1778, the Virginia legislature appointed him to the General Court. He moved through the judicial ranks quickly, becoming the chief justice of the General Court in 1779, chancellor of the High Court of Chancery by the end of 1780, and a member of the Virginia Court of Appeals.

Though his job as a jurist was to administer the laws, in another capacity he was active in framing them. In 1786, the legislature appointed him to succeed Thomas Jefferson on a committee charged with revising Virginia's statutes, and in 1787 he served as a delegate to the federal Constitutional Convention.

Though he never addressed the convention, he was active behind the scenes. Sometimes he disagreed with his fellow delegates. Unlike George Washington and James Madison, for example, he believed that the Congress should elect the president. Another Virginian at the convention, George Mason, withheld his assent to the whole process when things did not go his way. Blair decided to be pragmatic. When he realized he was splitting the Virginia delegation, he changed his vote and supported Washington and Madison.

Washington may have remembered this loyalty two years later, when he said he wanted to draw "the first characters of the Union in to the Judiciary." In September 1789, the new president nominated Blair to the new Supreme Court. Blair wrote to Washington, "When I considered the great importance, as well as the arduous nature of the duties, I could not but entertain some fears." Nevertheless, he "determined to make an experiment, whether I may be able to perform the requisite services, with some degree of satisfaction, in respect both to the Public and my self." The Senate confirmed the nomination in two days.

Colonial Williamsburg

The John Blair House in Colonial Williamsburg's Historic Area. Part of the house dates to the early eighteenth century, when John Blair Jr.'s uncle, James Blair, was first president of the College of William and Mary.

COULD ONE STATE SUE ANOTHER in the federal courts? Did British subjects have the right to sue to recover property confiscated during the Revolution? Could the Supreme Court overrule the Congress? Questions like these had never been adjudicated under the Constitution. The early justices of the nation's highest bench had to reason out the answers as they went along. Because they established precedents that guide modern jurisprudence, many of their decisions still matter to us today.

Blair's most influential opinion, written in 1793, comes from the first important case the Supreme Court settled, Chisholm v. Georgia. The executors of Alexander Chisholm, a citizen of South Carolina, entered into a dispute with the state of Georgia. Unable to obtain satisfaction, they went to the Supreme Court, which had original jurisdiction over cases in which a state was a party. The plaintiffs invoked Article III, Section 2 of the Constitution, which gave the federal judiciary power over cases between a state and citizens of another state—a point that had been in contention since the Constitutional Convention.

During the ratification debates such Federalists as John Marshall and Alexander Hamilton assured a doubtful public that the clause, which spoke of cases "between a State and Citizens of another State," referred only to a state's right to sue an individual, not the other way around. Georgia said the Chisholm proceedings were "unconstitutional and extrajudicial," and refused to participate. States were "sovereign," argued Georgia's lawyers, and could not be called into court. Blair, however, like three other justices, ruled against Georgia, only Justice James Iredell siding with it. Blair's opinion established principles for interpreting federal law.

Some of Georgia's adherents invoked analogies to "the various European confederations," where citizens of one member state could not sue another, but Blair wrote, "The constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal." Other opponents of Chisholm's executors said that the Constitution's failure to describe how the law could be enforced rendered it meaningless, but Blair did not buy it. "Nor does the jurisdiction of this court . . . seem to me to be questionable," he wrote, "on the ground, that congress has not provided any form of execution, or pointed out any mode of making the judgment against a state effectual." Such arguments, he said, "may weigh much, in cases depending upon the construction of doubtful legislative acts." But they "can have no force, I think, against the clear and positive directions of an act of congress and of the constitution." The Constitution's language was plain: "The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State."

Blair's was an influential opinion, for it asserted the primacy of the Constitution. European federations did not allow such lawsuits between members; logic dictated that an unenforceable provision was invalid; the framers themselves said they would never allow a citizen of one state to sue another state—all these arguments were urged to no avail. It was the text of the Constitution—the letter of the law and not the European models on which it was based, not the principles of common law, not even the promises of the men who wrote it—that should bind the court. "Whatever be the true language of that," Blair wrote, "it is obligatory upon every member of the Union."

Congress disliked the decision and in 1794 proposed the Eleventh Amendment, which says federal judicial power "shall not be construed to extend to any suit ...against one of the United States by Citizens of another State." Ratification was completed in 1795, and declared in 1798. In practice, Chisholm's executors did not get what they wanted. But the interpretive precedent was set. It was the first case in which the Supreme Court said it insisted on a close reading of the plain text of the Constitution. The system worked. Although the court had said that it, rather than the Congress, had the power to interpret the laws of the land, there was no armed rebellion, no purge of uncooperative justices.

Muscarelle Museum

John Hargrove's 1705 portrait of James Blair.

Supreme Court
of the United States

Jean Balfour Blair, John Blair Jr.'s wife, in a circa 1771 portrait by Cosmo John Alexander.

Library of Congress

Blair's signature on a document from 1787.

Extra: View Page One and Page Two of a March 28, 1787 letter written from Williamsburg by John Blair to Ambassador Thomas Jefferson as Jefferson prepared to ship for France. Blair asks Jefferson to intercede in behalf of a fellow passenger.

Colonial Williamsburg

George Washington, by Gilbert Stuart.

IN THE 1780S AND 1790S the Supreme Court had few cases before it, and one of the duties of the justices was "riding the circuit," serving on federal courts around the country. In 1792, the circuit court for Pennsylvania took up the case of William Hayburn. By law, the Congress had directed the circuit courts to sort out pension claims. Hayburn had filed a motion demanding his. Blair, however, mindful of the specific powers spelled out in the Constitution, joined with two other circuit judges to refuse Hayburn's petition. They wrote a letter to President Washington explaining their decision. It said, in part:

The people of the United States have vested in congress all legislative powers granted in the constitution. They have vested in one supreme court, and in such inferior courts as the congress shall establish, "the judicial power of the United States." . . . It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department.

Congress have lately passed an act, to regulate, among other things, "the claims to invalid pensions." Upon due consideration, we have been unanimously of opinion, that, under this act, the circuit court held for the Pennsylvania district could not proceed

1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must, consequently, have proceeded without constitutional authority. 2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with that important principle which is so strictly observed by the constitution of the United States.

These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, we hope never to experience again.

Hayburn's case was a judicial milestone. Although the justices did not explicitly declare that the judiciary could overrule the legislature, the implication was clear. For the first time, an American court had held that Congress had violated the terms of the Constitution, and that its law was therefore null and void. It was a monumental decision, for it asserted the separation of powers and the principle of judicial review.

BLAIR'S TIME ON THE BENCH, however influential, was brief. He had been appointed to the Supreme Court in 1789, but a few years later his health was deteriorating, and he worried that he could no longer serve effectively. On October 25, 1795, he wrote to Washington:

A strange disorder of my head, which has lately compel'd me to neglect my official duties, . . . has for some time past made me contemplate the resignation of my office, as an event highly probable ...I return you now the commission by which I have been so highly honoured.

He spent his final, uncomfortable, years in Williamsburg. Immediately after his retirement he wrote to one of his sisters, "I have been a good deal distressed myself by almost continual cholics." Two years later he suffered "a strange disorder to which I knew not how to give a name," as he wrote to another sister. It seems to have been a stroke:

I happened to be employed in some algebraical exercises ...when all at once a torpid numbness seized my whole face and I found my intellectual powers much weakened and all was confusion. My tongue partook of the distress and some words I was not able to articulate distinctly and a general difficulty of remembering words at all.

He died August 31, 1800, and was buried in the Bruton Parish Churchyard. Blair never received the accolades that came to figures like Washington and Franklin. Nevertheless, his contemporaries recognized his contributions. While he was still on the bench, James Sullivan, attorney general of Massachusetts, wrote to United States Senator William Bingham, "I think the President has been very fortunate in the appointment of Judges. We are much pleased with Judge Blair who has been with us. His candor ease politeness and learning are acknowledged and I am no less pleased with his independence." On hearing of his retirement, William Plumer, later senator from New Hampshire, wrote, "I consider him as a man of good abilities, not indeed a Jay, but far superior to Cushing, a man of firmness, strict integrity and of great candour." John Jay of New York was the nation's first chief justice. William Cushing of Massachusetts was Washington's first Supreme Court appointee.

Perhaps the most meaningful tribute Blair received came from the president who appointed him to the court. Asking them to serve, Washington wrote to his nominees, telling them "the Judicial System [was] the chief Pillar upon which our national Government must rest." By helping to establish the principles of constitutional interpretation, separation of powers, and judicial review, Blair did much to give the government a firm foundation.

Jack Lynch, author of The Age of Elizabeth in the Age of Johnson (Cambridge University Press, 2003), is associate professor of English at Rutgers University in Newark, New Jersey. He contributed to the autumn 2005 journal a story about John Daly Burk.